CAAFlog » Court-Martial News

In an opinion piece published by the Alaska Dispatch News and available here, Professors Rachel VanLandingham and Joshua Kastenberg (both retired Air Force Lieutenant Colonels and former Air Force military judges) call for the complete dismissal of the charges against Sergeant Bergdahl (CAAFlog news page) because:

On the campaign trail, then-candidate Trump repeatedly, and publicly, condemned Bergdahl as a traitor, and variously called for his execution by firing squad and by being pushed out of an airplane. This was not a one-off event; candidate Trump made his conclusion that Bergdahl is a traitor and should be executed a campaign meme, returning over and over to the same rhetoric.

Trump has never disavowed these comments. While it is true he hasn’t repeated them in the few short months he’s been in office, that’s because he doesn’t have to -– he knows he has already sent a very loud, very clear and very powerful message to his military subordinates (many of whom voted for him) he wants Bergdahl convicted and given the harshest punishment possible.

They echo the oft-repeated claim of Bergdahl’s defense counsel that the President’s campaign-trail comments are unlawful command influence so severe that it can’t be remedied. That claim is the subject of a seventh petition for extraordinary relief currently pending before CAAF (noted here) (pleadings available here).

While Professors VanLandingham and Kastenberg argue that the continued prosecution of Bergdahl risks “the fairness, credibility and integrity of the military justice system,” I believe that the danger to military justice is in dismissal, not continued prosecution.

Dismissal would, as I explained here, result in Sergeant Bergdahl’s honorable discharge from the Army, and it would also guarantee him other benefits in connection with his alleged desertion (and subsequent capture by the Taliban); an offense that, as I explained here, it seems Bergdahl confessed to committing. Bergdahl also engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and Bergdahl allowed the Serial podcast to use those recordings (according to the Serial podcast; link to episode transcript). Those recordings contain more damaging admissions and other aggravating evidence (some discussion here), and their publication is likely far more damaging to Bergdahl than anything said on the campaign trail.

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

Professors VanLandingham and Kastenberg also lash out at their Army colleagues:

Bergdahl’s defense has already tried to get this case dismissed on these grounds. However, not surprisingly, the military judge and Army appellate court (also consisting of active-duty military members) have declined to cross their commander-in-chief in that manner.

I think this is a foul blow. There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence. VanLandingham and Kastenberg must have a remarkably dim view of the Army’s Judge Advocate General’s Corps.

The credibility of the military justice system is founded in its systemic ability to do justice, not in the result of one particular (and factually and emotionally thorny) case. If those championing dismissal of the charges against Bergdahl really believe that the trial military judge and the Army CCA are incapable of remedying unlawful command influence committed by a presidential candidate who subsequently gets elected, then the damage to the military justice system is already done.

There is significant evidence that Bergdahl committed multiple offenses in departing and staying away from his combat outpost, and many of his fellow soldiers suffered as a result. That Bergdahl spent five years in captivity is a mitigating factor for sure, but it’s one that must be considered in context with the other facts of the case.

The appropriate place for that to occur in the first instance is neither the court of public opinion nor the appellate courtroom; it’s a court-martial.

The Marine Corps Times reports here about North Carolina charges filed against a career Marine accused of:

posting one nude photo of the woman and six pictures of her wearing underwear on April 14, according to an arrest warrant, which does not identify the website where the pictures appeared.

According to the report, the accused is charged with “felony disclosure of private images,” which appears to be a violation of N.C. Gen. Stat. § 14-190.5A.(available here), which states:

(b) Offense. – A person is guilty of disclosure of private images if all of the following apply:

(1) The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4) The person discloses the image without the affirmative consent of the depicted person.

(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.

The statute defines a reasonable expectation of privacy as:

When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship.

§ 14-190.5A(a)(5).

The North Carolina statute seems to be perfectly adequate to criminalize the kind of bad acts at issue in the Marines United scandal, and the statute appears free of the flaws I identified in my analysis of the recently-promulgated Article 1168, U.S. Navy Regulations.

If Congress thinks there should be a similar statute of national applicability, perhaps it should enact one.

We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

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According to various news reports, Marine Major Mark Thompson (CAAFlog news page) received a sentence of confinement for 90 days and a dismissal after pleading guilty yesterday at a general court-martial to making false official statements and conduct unbecoming an officer and a gentleman.

This report published by military.com explains that:

Thompson’s sexual misconduct began in 2011, when he drank, played strip poker and had a threesome with one of the midshipmen and a fellow Marine officer.

He admitted to lying to officers at a 2014 board of inquiry in which he claimed his innocence and was allowed to stay in the Marine Corps. He also admitted to lying to a Washington Post reporter John Woodrow Cox about his involvement with the women.

Back in 2013, after a general court-martial found him guilty of the underlying sexual misconduct, Thompson was sentenced to confinement for two months and a fine of $60,000.

The report also notes that:

Under Thompson’s plea agreement, the court agreed to endorse his “request to retire,” a decision which will have to be reviewed by the secretary of the Navy, Greer [the military judge] said.

While it’s unclear what grade he could retired at, Greer said it could be O-2, “which I believe was the last grade served honorably.

10 U.S.C. § 1186(b) provides that because Thompson has 20 years of active service, such retirement must be approved. Had Thompson received a sentence of at least six months, however, and actually served six months, he could have been dropped from the rolls under 10 U.S.C. § 1161 and 1167.

Thompson’s retirement will, as noted by the military judge, involve a determination of the highest grade in which he served satisfactorily, pursuant to 10 U.S.C. § 1370.

If transferred to the retired list Thompson will be subject to the UCMJ for the rest of his life. See United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

An alert reader drew our attention to this docket page where the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016, appears to be scheduled for disposition by guilty plea on Thursday.

CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT’S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

Airman 1st Class Charles Amos Wilson III – whose case we last discussed here – was found guilty on Monday of the premeditated murder of his fiancee and their unborn child in 2013. The case was referred capital.

News reports here (Air Force Times), here (AP), and here (local).

Here is CNN coverage of POTUS’s early morning tweet paraphrasing Fox News coverage of a Private Manning article, here, that was critical of President Obama for being insufficiently progressive. The tweet reads:

Ungrateful TRAITOR Chelsea Manning, who should never have been released from prison, is now calling President Obama a weak leader. Terrible!

Just in case you were wondering, I have not found anything that specifically prohibits raising UCI at any point in the court-martial process. Any thoughts on UCI over the post-trial process? H/t LM

Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here

Here is the NYT article on the commutation of Private Manning’s sentence that results in a release date in May of 2017 rather than finishing the remaining 27 or so years and being released in approximately 2045. H/t JK

In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.

That inquiry is now over. Stars and Stripes reports here that:

The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.

“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.

The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.

Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

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Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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No. 17-0069/AR. In re Robert B. Bergdahl, Petitioner.  On consideration of the petition for extraordinary relief in the nature of writ of mandamus and Petitioner’s motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal and motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc, it is ordered that said motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal is hereby denied, that said petition for extraordinary relief is hereby denied, and that said motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc is hereby denied as moot.

This was Bergdahl’s sixth writ petition at CAAF, and was previously discussed here. #5 was discussed here. #4 was discussed here. #3 was discussed here. #2 was discussed here. #1 was discussed here.